WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, February 09, 2017

SO- CALLED APPELLATE COURT AFFIRMS SO-CALLED JUDGE

This is why we celebrated the Trump win. The spectre of constitutional crises every day.Thursday evening the 9th Circuit court of appeals ("Dude...affirmed!") affirmed the order of the District Court Judge.The constitutional crisis in the Nixon administration started with the Saturday night massacre, and ended six months later when the Supreme Court upheld the district court judge's order requiring the white house to produce the tapes. Nixon resigned in August 1974 and Gerald Ford declared "our long national nightmare over." (Over/under on Pence saying that is November, 2018).In May, 1861, two months into office, President Lincoln suspended the great writ of habeas corpus and then defied the US Supreme Court. As Judge Hirsch has probably recounted dozens of times to dazed young PDs and ASAs, John Merryman, a State Legislator from Maryland was arrested for hindering the movement of Union Troops. Merryman was held at Fort McHenry. His lawyer (not Sy Gaer) filed a for a writ of habeas corpus to bring the body of the defendant to a district court. Lincoln issued an executive order (well before Trump ever did) that suspended the right for the great writ of habeas corpus on military bases. The commander of the fort followed the order of his commander in chief and refused to deliver Merryman.US Supreme Court Chief Judge Roger Taney paused briefly in his penning the Dred Scott decision to rule that Lincoln did not have the authority to issue an order suspending habeas corpus. Lincoln sat tight. He didn't respond. He didn't reply. And he didn't order Merryman released, and we had our first constitutional crises.We are a blogger of the people. We don't mingle with hoi polloi, but we sometimes visit and observe. And Thursday night was an exercise in the people's version of constitutional law. We sat transfixed, nursing a cheap (for us) Cabernet while a twenty-something SoBe bartender with rings in her nose, lips and ears, and a sleeve of tattoos not covered by a revealing tight black tank-top lectured us about standing, the 9th circuit, and that their order had no basis in the establishment clause of the first amendment. Fascinating.We wrote- what seems like an eternity ago- that Article III judges were all that stood between our president and a dictatorship. While we disagree with the 9th circuit's analysis, we are proud to live in a country where a Judge can tell a president "NO" and No means No -Lincoln and Taney not withstanding.Lincoln refused Taney's order two months into his presidency while struggling to deal with a rebellious Maryland border state. Not to be outdone, 45 has provoked a crisis less than thirty days into office while struggling to deal with a rebellious white house staff. Here's the order from the 9th.

The decision from the Ninth Circuit is like most of the other 86% of their decisions that are reversed by the Supreme Court. The law is faulty; the logic tortured. In your passion to seize anything left, you should at least pay some attention to what the law is and also to the precedent that this decision for what will, no doubt, be a brief life could cause. Do we really want two ancient and one relatively new far left judges examining and approving Executive decisions. Why not consider that this type of thing could have been done to the venerable, never wrong, and almost perfect President Obama? And, I assume that while it is unacceptable to make a comment about a district judge because it might intimidate him, it was just wonderful and supercool to criticize the entire Supreme Court for Citizens United during the State of the Union address which I think is far more troubling that what President Trump did.

The 9th Circuit decision is an example of results-oriented jurisprudence based on policy instead of on law or constitutionality. It had to go that route because of the stupidity of acting president Steve Bannon's executive order. The 9th Circuit reasoning goes this parental way: baby, you are supposed to poop in your high chair and not make a mess of yourself, but since you decided to poop on yourself and smeared the poop all over the floor, I had no choice but to hose the poop off your butt.